Address vulnerability to trafficking

The United Nations commentary to the obligation to address vulnerability of individuals to trafficking suggests that a person is considered to be vulnerable to trafficking where they have illegally entered a country, or have entered without proper documentation; where they have a reduced capacity to make judgements as a result of mental or physical incapacity; or where they are in a precarious position with respect to “social survival.”66 Of course, many other forms of vulnerability are possible and the travaux préparatoires indicate that vulnerability should be widely understood as referring to any situation wherein a person has no acceptable alternative but to submit to abuse.67

Of specific relevance to the issue of trafficking in the fishing industry is the International Labour Organisation (ILO) Convention 188 Work in Fishing Convention 2007. Although it has not yet fully ratified, New Zealand is a signatory to this convention and is currently in the process of ratification.68 This Convention sets out a number of useful definitions,69 and provides certain responsibilities of fishing vessel owners, skippers and fishers,70 including placing responsibility on the skipper of the vessel for the safety of the fishers on board.71 The Convention contains a number of provisions aimed at the safety and protection of fishers, including a minimum age of 16 years for work on fishing vessels,72 the requirement that fishers have a current medical certificate to show their ability to work safely,73 the requirement that member states adopt laws to ensure that flagged fishing vessels provide adequate periods of rest for fishers.74 Vessels are required to carry crew lists, with copies provided to authorised persons ashore.75 The Convention also regulates the matter of fishers work agreements. Article 16 sets out the minimum particulars that must be contained in an agreement.76 Article 17 requires member states to ensure that fishers have the opportunity to

66 _{UNODC Model Law, above n 37, at 11.}

67 _{Travaux Préparatoires of the Organised Crime Convention, above n 6, at [63].}

68 _{(2011) 1 NZTS at 23. Email from A Smith (Ministry of Transport) to the Author regarding ratification of ILO}

C188 (17 July 2012).

69 _{Work in Fishing Convention 2007, ILO C188, art 1.} 70 _{At art 8.}

71 _{At art 8(2).} 72

At art 9.

73 _{At art 12.}

74 _{At art 13-14. Article 14(1) states that the minimum hours of rest shall not be less than ten hours in any 24}

hour period, and 77 hours in any seven day period.

75

At art 15. See also the Convention on the Facilitation of International Maritime Traffic FAL (adopted 9 April 1965, entered into force 5 March 1967).

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seek independent advice on their work agreement, and have the ability to access dispute resolution processes. Article 18 requires copies of the work agreements to be carried on board the vessel and be available to the fisher and other authorised parties on request. With respect to work agreements, the final provision in this Convention is Article 20, stating that it is the responsibility of the fishing vessel owner to ensure that each fisher has a written fisher's work agreement signed by both the fisher and the fishing vessel owner providing for decent work and living conditions on board the vessel as required by this Convention. From this list of provisions, it is clear that this Convention takes large steps forward in terms of addressing the practical elements that make certain individuals vulnerable to trafficking.

The United Nations General Assembly passed a Resolution on “Oceans and the Law of the Sea” in December 2010.77

This Resolution provides insight into the intent behind the Work in Fishing Convention previously discussed, and elements of the UNCLOS. In particular, the resolution notes the ongoing problem of human trafficking, and recognises the fact that it is often intertwined with other forms of transnational crime. The General Assembly through this resolution encourages states to ratify the Maritime Labour Convention 2006, and to utilise mechanisms of international cooperation in order to properly prevent and react to human trafficking and other forms of organised transnational crime.

Article 22 of the Maritime Labour Convention requires member states to regulate recruitment of fishers by ensuring that the recruitment services that exist are part of, or coordinated with public employment services. This means that under the Convention, private employment agencies will be subject to the same scrutiny as government-run agencies. Further, member states must prohibit recruitment agencies from blacklisting individuals,78 or from charging recruitment fees.79 As with the Work in Fishing Convention, this is an attempt to address and prevent the practices that commonly occur in relation to victims of trafficking in the fishing industry. In addition, the Convention considers the issue of manning agents, who are often used by fishing vessel owners to provide crew for vessels. The Convention states that a fishing vessel owner shall be liable in the event that a manning agent defaults on its obligations to fishers.80

The Maritime Labour Convention provides for the proper payment of fishers. Article 23 states that “each Member, after consultation, shall adopt laws, regulations or other measures providing that fishers who are paid a wage are ensured a monthly or other regular payment.” Article 24 obligates member states to provide a means by which fishers may transmit part or all of their income to their families at no cost.

77 _{UN General Assembly “Oceans and the Law of the Sea” GA Res 65/37, UN Doc A/Res/65/37 A (2011).} 78

Maritime Labour Convention MLC 2006, at art 22(2).

79 _{At art 22(3).} 80 _{At art 22(4)-(6).}

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Further, fishers’ rights with respect to accommodation and food are provided for.81

The Convention requires Member states to adopt measures82 to ensure that vessels have appropriate – in terms of size, quality, hygiene and comfort – accommodation.83 Likewise, the food and water carried on board must be “of a sufficient nutritional value, quality and quantity.”84

Lastly, the Maritime Labour Convention deals with the matter of medical care for fishers. Article 29 requires that fishing vessels carry appropriate medical equipment for the number of fishers on board, the work being done, and the length of the voyage.85 Each vessel must have a minimum of one fisher on board who is trained in medical care, and has the knowledge and ability to use the medical equipment on board the vessel.86 The vessel must have the equipment on board needed to communicate with persons ashore who can provide medical advice,87 and fishers have the right to timely shore based medical assistance if required.88

The Convention provides for occupational health and safety measures on board fishing vessels. Specifically, fishers are required to be properly trained for the work they will be required to do on board.89 Fishers must be provided with adequate protective clothing and equipment and given safety training. 90 Finally, there must be proper reporting and investigation mechanisms in place for dealing with accidents that do occur.91

In addition to the Maritime Labour Convention, the International Convention on the Protection of the Rights of all Migrant Workers92 makes explicit statements that migrant workers must not be subjected to forced labour,93 and that States Parties must criminalise the withholding of passports or other travel documents.94 New Zealand has not ratified the Migrant Labour Convention. In the 2009 Universal Periodic Review, it was recommended by

81 _{At art 25 to 27, as supplemented by Annex III of the Maritime Labour Convention, which contains a number}

of technical provisions relating to vessel size.

82 _{At art 25.} 83 _{At art 26.} 84

At art 27(a)(b). Note art 27(c) allows for the cost of providing such food and water to be considered an operational cost and thereby recovered, if the collective work agreement of the fishers allows this.

85 _{At art 29(a).} 86

At art 29(b)(c).

87 _{At art 29(d).}

88 _{At art 29(e). Insofar as it is not incompatible with domestic law, this medical care is required by art 30(f) to be}

free of charge.

89

At art 31(a)(b)(c).

90 _{At art 32.} 91 _{At art 31(d)(e).}

92 _{International Convention on the Protection of the Rights of all Migrant Workers 2220 UNTS 3 (opened for}

signature 18 December 1990, entered into force 1 July 2003), preamble [Migrant Workers Convention].

93 _{At art 11.} 94 _{At art 21.}

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the Committee that New Zealand ratify this Convention, but New Zealand declined, stating that there are laws in place to adequately protect the rights of migrants.95

3.2.2. Reduce demand for products and services provided by victims of